THE SNOWDEN DISCONNECT:

WHEN THE ENDS JUSTIFY THE MEANS

John Robinson Jr.
*

* * *
Abstract
People react to Edward Snowden and his national security disclosures in radically
different ways. Security hawks want his head and call him a traitor; privacy
advocates think him a whistleblower and a national hero. This essay examines
those positions and finds that there is a fundamental disconnect between them,
which influences and prohibits an important national conversation concerning the
scope of the NSAs work, the laws under which it operates, and privacy rights of
United States citizens. This essay concludes that the privacy advocates have the
stronger interests, and that it is wildly inconsistent for the government to
simultaneously seek Snowdens prosecution at the same time it engages in
substantive national-security legal reforms.

TABLE OF CONTENTS
INTRODUCTION ........................................................................................................ 2
I. BACKGROUND ....................................................................................................... 3
A. ABOUT THE NSA AND THE U.S. INTELLIGENCE COMMUNITY ................................ 3
B. SNOWDEN AND THE DOCUMENT CACHE: REVELATIONS AND LIES ........................ 5
1. The First Revelation: NSAs Mass Collection of Cell Phone Metadata ......... 7
2. Wiretapping the Internet: PRISM ................................................................... 9
3. Devouring an Entire Countrys Voice Communications: MYSTIC ............. 12
4. Other Revelations ......................................................................................... 14
II. THE SNOWDEN FILES: HARBINGER OF CHANGE ................................... 14
III. ANALYSIS ........................................................................................................... 16
A. TWO VIEWS, ONE SET OF FILES ........................................................................... 16
B. THE DISCONNECTS, RECONNECTED ..................................................................... 18
CONCLUSION ........................................................................................................... 21

*
Copyright 2014 by John Robinson Jr. This essay was prepared for Professor Dryers
Information Privacy Law class at the University of Utah College of Law, Spring 2014. The
blog associated with the course is available at http://rdryerprivacylaw.blogspot.com/.

The Snowden Disconnect
INTRODUCTION
By now, its old news. In June of 2013, a private contractor working on
National Security Agency projects left the United States with a cache of
secret government documents. His name is Edward Snowden, now a
household name in the U.S. and around the world. As I have written before,
some label him a traitor; others a hero. The documents he absconded with
have been referred to diametrically as either a treasure trove of information
or a major threat to U.S. national security.
Although news organizations, primarily The Guardian and the
Washington Post, have only released a small fraction of Snowdens total
document cache, many people consider this one of the most significant
leaks in U.S. history. For instance, Daniel Ellsberg thinks that the Snowden
disclosures are more significant than even his own release of the Pentagon
Papers in 1971.
1
The Pentagon Papers revealed the true history of the U.S.s
political and military history in Vietnam that had gone unreported in the
media and explicitly illustrated that the Johnson Administration had
systematically lied to the public and to Congress.
2
Therefore, any
comparison of the Snowden files to the Pentagon Papers underscores
exactly how ground-breaking Snowdens revelations are.
The Snowden disclosures, with their results and consequences, are
fascinating and important regardless of whether his actions were heroic or
treacherous. In fact, the arc of governmental response seems to indicate that
he is both a traitor and a herothe government persecutes and denounces
his actions on the one hand, while making substantive change to
1
Ellsberg: No Leaks More Significant Than Snowden's, ASSOCIATEDPRESS (Jun. 11,
2013 11:55 AM), http://bigstory.ap.org/article/ellsberg-no-leaks-more-significant-
snowdens.
2
R. W. Apple Jr., 25 Years Later; Lessons From the Pentagon Papers, N.Y. TIMES
(June 23, 1996), http://www.nytimes.com/1996/06/23/weekinreview/25-years-later-
lessons-from-the-pentagon-papers.html?ref=pentagonpapers; Pentagon Papers,
WIKIPEDIA, http://en.wikipedia.org/wiki/Pentagon_Papers (last visited March 20, 2014).
2


The Snowden Disconnect
surveillance law on the other. This essay explores the disconnect between
those two positions. How can Snowden be both things simultaneously? If he
is a traitor, that indicates that there was nothing wrong with the
governments surveillance programs. But if changes to those programs are
necessary, than how can Snowdens actions make him a traitor?
This essay engages those questions in three parts. Part I contains
background material, including the Snowden revelations themselves and the
NSAs surveillance apparatus. Part II addresses President Obamas
proposed changes to government surveillance programs. Part III then
analyzes the disconnect illustrated above and concludes that the continued
vitality of U.S. democracy requires that, at least in this case, the ends have
justified the means.
I. BACKGROUND
This part briefly explains the nature of the NSA, and its position within
the broader United States intelligence community, in subpart A. Subpart B
then examines three examples of revelations stemming from the Snowden
files. These examples are illustrative and help define some of the contours
of the revelations, but are not intended to be a thorough analysisthere are
many revelations not covered here as explained in part I.B.4, infra.
A. About the NSA and the U.S. Intelligence Community
Founded in 1952, the National Security Agency (NSA) is the United
Statess signals intelligence agency.
3
Signals Intelligence (SIGINT) is
intelligence derived from electronic signals, including communications
systems, radars, weapons systems, and so on. As the name and definition
suggest, this is an incredibly broad term. To keep pace with that broad
mission, the NSA has become the one of the largest arms of the U.S.
3
See Exec. Ord. 12,333 1.12(b), 46 Fed. Reg. 59,941 (Dec. 4, 1981); Mission,
NSA.GOV, http://www.nsa.gov/about/mission/index.shtml (last visited March 21, 2014).
3


The Snowden Disconnect
intelligence apparatus, which includes sixteen agencies (the Intelligence
Community) in total.
4

General Keith Alexander heads the NSA and reports directly to the
Director of National Intelligence, James Clapper. Oversight of the NSA,
such that it is, comes from the congressional intelligence committees in the
House and Senate, as well as the statutorily-created
5
Foreign Intelligence
Surveillance Court (FISC), which sits in private.
Although the size and spending of the various spy agencies is classified,
the Washington Post reported on the secret black budget of the
intelligence community.
6
The report detailed some of the inner workings of
the NSA and the Central Intelligence Agency (CIA), including that the
CIAs budget is actually around 36% bigger than the NSAs.
7
All together,
the non-Defense Department Intelligence Community employs almost
110,000 people in both civilian and military roles. Of those, almost 22,000
are full-time contractors that support core functions of the intelligence
agencies.
8
Edward Snowden was among these non-government employees.
The NSA itself employs somewhat fewer people than the CIA,
presumably because its mission does not include human-based operations.
But the NSAs headquarters is a massive complex (it even has its own exit
4
Intelligence Community, DNI.GOV, http://www.dni.gov/index.php/intelligence-
community/members-of-the-ic (describing the members of the U.S. Intelligence
Community that fall under the Office of the Director of National Intelligence) (last visited
March 21, 2014).
5
Foreign Intelligence Surveillance Act of 1978, Pub. L. 95511, 50 U.S.C. ch. 36.
6
Barton Gellman & Greg Miller, U.S. Spy Networks Successes, Failures And
Objectives Detailed In Black Budget Summary, WASH. POST (Aug. 29, 2013),
http://www.washingtonpost.com/world/national-security/black-budget-summary-details-us-
spy-networks-successes-failures-and-objectives/2013/08/29/7e57bb78-10ab-11e3-8cdd-
bcdc09410972_story.html.
7
See id. (listing the CIA budget as being nearly 50 percent above the NSAsbut
the Posts math was over-simplified). This point is interesting because many commentators
had previously thought that the NSA was far and away the biggest U.S. spy agency. Id.
8
Wilson Andrews & Todd Lindeman, The Black Budget, WASH. POST (Aug. 29,
2013), http://www.washingtonpost.com/wp-srv/special/national/black-budget/.
4


The Snowden Disconnect
from Interstate 295) nonetheless. Indeed, the NSA is the largest electric
power consumer in Marylandthe headquarters alone was set to draw well
over eighty megawatts as early as 2008.
9
Thats enough to power around
8,000 homes based on the national average for electrical consumption.
Running computers takes a lot of power and keeping them cool requires
a lot of water. In fact, those two requirements have run head-on into the
NSAs need for enormous data storage at the agencys new facility in
Bluffdale, Utah. There, the NSA fast-tracked the new facility to keep up
with its expanding needs, but has run into a number of electrical problems
along the way. When it finally begins operating, the datacenter will require
around sixty-five megawatts of electricity per year (at a cost of around $18
million), which necessitated that NSA construct a separate substation for the
facility.
10
The center also uses quite a bit of water to keep everything cool,
but that information is deemed a national secret because one could use the
water use to extrapolate the massive computer power inside the center.
11

This essay details some of the NSAs uses for all that computing
horsepower in the following section.
B. Snowden and the Document Cache: Revelations and Lies
During the lead-up to the leaking his purloined secret documents,
Edward Snowden worked for NSA-contractor Booz Allen Hamilton, one of
the nations largest private employers of civilians with security clearances.
12

9
Siobhan Gorman, NSA Electricity Crisis Gets Senate Scrutiny, BALTIMORE SUN (Jan.
26, 2007), http://articles.baltimoresun.com/2007-01-26/news/0701260231_1_electricity-
rockefeller-senate-intelligence-committee.
10
Steven Oberbeck, NSA Bluffdale Center Won't Gobble up Utah's Power Supply,
SALT LAKE TRIBUNE (June 30, 2013), http://www.sltrib.com/sltrib/news/56493868-
78/power-center-electricity-utah.html.csp.
11
Robert McMillan, Why Does the NSA Want to Keep Its Water Usage a Secret?,
WIRED (March 19, 2014), http://www.wired.com/2014/03/nsa-water/. Some are calling for
disclosure of those water records, and others are calling for Utah to cut off the water
supply, which would effectively stop the center from going into operation. Id.
12
Who Holds Security Clearances?, WASH. POST (June 10, 2013),
5


The Snowden Disconnect
While there, he was able to collect and store the cache of documents now
known as the Snowden files (also known as the NSA files, depending on the
news outlet). In May of 2013, he loaded up the cache and boarded a flight
for Hong Kong, seeking to travel to Latin America via countries without
extradition treaties with the U.S. After an extended stay in Hong Kong due
to the State Departments suspension of his passport, he managed to make
his way to Russia. He is currently residing there under a one-year grant of
asylum, which is renewable.
13

Meanwhile, the U.S. has filed criminal charges against Snowden.
Therefore, his prosecution, should he return to the States, is a real
possibility. In its criminal complaint, the U.S. makes three charges against
Snowden: (1) Theft of Government Property; (2) Unauthorized
Communication of Defense Information; and (3) Willful Communication of
Classified Information. However, charges 2 and 3 arise out of the Espionage
Act, which is so broadly worded as to raise First Amendment issues.
14

From the Snowden files, the public now knows that much has changed
since the 1970s when the NSA only directed its activities outside of the U.S.
border. Senator Frank Churchs warning, issued while he and the Church
Committee investigated U.S. intelligence agencies in the wake of Watergate
turned out to be very prescient: The NSA's capability at any time could be
turned around on the American people, and no American would have any
privacy left.
15
That, apparently, has come to pass. Several of the major
revelations sourced from the Snowden files follow.
http://www.washingtonpost.com/world/who-holds-security-
clearances/2013/06/10/983744e4-d232-11e2-a73e-826d299ff459_graphic.html
13
See Elise Labott & Mariano Castillo, Edward Snowden Won't Be Pressured To End
Asylum, Russia Says, CNN (Jan. 24, 2014),
http://www.cnn.com/2014/01/24/world/europe/russia-snowden/.
14
Christina Wells, Edward Snowden, the Espionage Act and First Amendment
Concerns, JURIST (July 29, 2014), http://jurist.org/forum/2013/07/christina-wells-snowden-
espionage.php.
15
Id.
6


The Snowden Disconnect
1. The First Revelation: NSAs Mass Collection of Cell Phone Metadata
The first breaking story derived from the Snowden files concerned a
court order from the Federal Intelligence Surveillance Court (FISC) to the
telecommunications giant Verizon. The order required Verizon to turn vast
amounts of cellular phone metadata over to the NSA, and required Verizon
to provide that information on an ongoing basis.
16
Metadata is data about
data, and, in this context, typically includes information such as time and
duration of a call, the number dialed, and the geolocation of caller.
Although a phone calls metadata does not include the contents of the
communication, somewhat akin to the difference between an envelope and
the letter contained inside, the information on the envelope itself (i.e., the
metadata) can be very revealing. That is particularly true of aggregated
metadata, at issue here; a tool provided by MIT provides easy visualization
exactly how much information can be extracted solely from metadata.
17

The U.S. government maintains that collecting metadata is not invasive
and also that it is not protected under the third party doctrine from Smith v.
Maryland.
18
Also, claims the government, mass collection of metadata is
necessary because the government does not always know beforehand which
communications involve foreign terrorists. That is, identify[ing] potential
terrorist communications ... requires collecting and storing a large volume
and high percentage of information about unrelated communications.
19

16
Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon Customers
Daily, THE GUARDIAN (June 5, 2013), http://www.theguardian.com/world/2013/jun/06/nsa-
phone-records-verizon-court-order.
17
Although the MIT Immersion tool analyzes email metadata, the same sort of
analysis can be completed using telephony metadata. Indeed, metadata from Verizon
includes geographic information as well, making it even more invasive.
18
442 U.S. 735 (1979) (holding that installation of pen register at a telephone
company did not violate the Fourth Amendment because of the third party doctrine).
19
Timothy B. Lee, Heres How The Government Justifies Sucking Up Your Phone
Records, WASH. POST (July 22, 2013),
http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/22/heres-how-the-
government-justifies-sucking-up-your-phone-records/.
7


The Snowden Disconnect
Therefore, the argument goes, the government must collect everything so
that they can find what they are looking for after the fact. According to the
NSA, collecting Americans metadata in this way is legal because there are
reasonable grounds to believe that such collection is relevant to
international terrorism investigations.
20
To find the needle, you must collect
the haystack around it.
However, privacy advocates are not so sure about either prong of the
governments argument. They claim that the third party doctrine is tenuous
at best when applied to massive surveillance projects, and that metadata can
be very revealing even when the government does not collect the underlying
communications themselves.
A recent Stanford University study used crowdsourced data volunteered
from several hundred participants, collected over several months, to test the
relative sensitivity of metadata.
21
The researchers originally predicted that
such a small datasetfew people and short timewould not reveal
particularized facts. However, they concluded that, We were wrong. Phone
metadata is unambiguously sensitive, even over a small sample and short
time window.
22
For instance, the researchers identified such things as
participants religion with 73% accuracy.
23
Additionally, metadata showed
that one study participant almost certainly had Multiple Sclerosis, another
definitely had cardiac arrhythmia, and a third owned an AR-15
semiautomatic rifle.
24

20
Id.
21
Jonathan Mayer & Patrick Mutchler, MetaPhone: The Sensitivity of Telephone
Metadata, WEB POLICY (Mar. 12, 2014), http://webpolicy.org/2014/03/12/metaphone-the-
sensitivity-of-telephone-metadata/.
22
Clifton B. Parker, Stanford Students Show That Phone Record Surveillance Can
Yield Vast Amounts Of Information, STANFORD.COM (Mar. 12, 2014),
http://news.stanford.edu/news/2014/march/nsa-phone-surveillance-031214.html
23
To be fair, this dataset was even smallerthe researchers determined religions
correctly in 11 of the 15 participants they looked at.
24
Mayer & Mutchler, supra note 21.
8


The Snowden Disconnect
Indeed, it is not at all hard to infer what one study participant was up to
when she contacted a home improvement store, locksmiths, a hydroponics
dealer, and a head shop during the study. These results seriously undermine
the governments position that metadata is not that big a deal. They also cut
directly against United States District Court Judge William Pauleys
assertion in ACLU v. Clapper. The judge, dismissing a challenge to the
constitutionality of NSA data collection, said that the ACLUs privacy
concerns were just a parade of horribles.
25

According to one security expert, indiscriminately vacuuming all
metadata up in this way showed an extraordinary repudiation of any
pretence [sic] of constraint or particularized suspicion.
26
These NSA
activities were the first of the Snowden revelations to detail just how far the
agencys mission had transformed from its original focus on foreign
intelligence gathering.
Although the Verizon metadata story was the first to break, the
Snowden files continue to shed light on the Intelligence Community
generally and the NSA specifically.
2. Wiretapping the Internet: PRISM
PRISM
27
is the code name
28
of a massive clandestine surveillance and
data mining tool operated by NSA since at least 2007. Britains
Government Communications Headquarters (GCHQ) participates in PRISM
as well. The Snowden files show that PRISM is the primary raw-data tool
employed by the NSA, and that it operates by collecting information from
25
ACLU v. Clapper, No. 13-3994 (S.D.N.Y. Dec. 27, 2013), available at
https://www.aclu.org/files/assets/order_granting_governments_motion_to_dismiss_and_de
nying_aclu_motion_for_preliminary_injunction.pdf
26
Greenwald, supra note 16 (quoting Julian Sanchez, a surveillance expert with the
Cato Institute).
27
PRISM may be an acronymPlanning Tool for Resource Integration,
Synchronization, and Managementthat has existed in military jargon for some time.
28
Officially, PRISM is known as SIGAD (SIGINT Activity Designator) US-984XN.
9


The Snowden Disconnect
major Internet players such as Apple, Google, Microsoft, and Facebook, a
group that NSA refers to as the current providers.
29

Although it is still somewhat unclear as to the complicity of each
provider, some have speculated that PRISM may not extract data from the
providers servers directly. Instead, it may be that PRISM is essentially a
wiretap device that plugs into the Internet backbone of Tier 1 providers,
thereby collecting a copy of each byte of data as it flows from one point to
another [map of undersea fiberoptic cables connecting the world]. However,
other information suggests that upsteam data collection (i.e., the Tier 1
wiretaping) occurs separately and is separate from the PRISM program
itself.
30
For this essay, however, the precise mechanism that empowers
PRISM is not particularly importantwhat matters is the absolutely
incredible amount of data that NSA collects and organizes.
It is true that PRISM is probably not a dragnet (in precise terms)
because NSA does not necessarily store all data available to it. But, NSA is
collecting wholly intra-U.S. communications made by U.S. citizens based
of the sheer volume of data collected and NSAs own internal
minimization
31
procedures. Indeed, NSA tells its analysis that accidental
collection of an Americans communication is nothing to worry about
32

29
NSA Slides Explain The PRISM Data-Collection Program, WASH. POST (June 6,
2013), http://www.washingtonpost.com/wp-srv/special/politics/prism-collection-
documents/. The complete list of current providers is extensive, and seems to contain
almost all important internet companies. Id.
30
Id.
31
Minimization means the process through with the NSA targets individuals for
surveillance, and supposedly complies with section 702 of FISA, codified at 50 U.S.C.
1881a. According to the Electronic Frontier Foundation, Americans still have a lot to worry
about with regard to the so-called minimization. Kurt Opsahl & Mark Rumold, Reassured
by NSA's Internal Procedures? Don't Be. They Still Don't Tell the Whole Story, EFF.ORG
(June 21, 2013), https://www.eff.org/deeplinks/2013/06/recently-revealed-nsa-procedures-
likely-ones-found-unconstitutional-fisa-court.
32
Barton Gellman & Laura Poitras, U.S., British Intelligence Mining Data From Nine
U.S. Internet Companies in Broad Secret Program, WASH. POST (June 6, 2013),
http://www.washingtonpost.com/investigations/us-intelligence-mining-data-from-nine-us-
10


The Snowden Disconnect
even though collecting such information without a warrant is illegal. And,
unlike the Verizon metadata collection mentioned above, PRISM actually
collects the content of the communications. For instance, PRISM collects
email, video & voice chats, VOIP calls, and social networking data.
33

This combinationthe type of data collected along with the low
threshold to collect itmeans that NSA is watching and listening to
American citizens. According to Senator Mark Udall, as long as the NSA
inadvertently or accidentally collected the information in the first place,
there is nothing [in the law] to prohibit the intelligence community from
deliberately search[ing] for the phone calls or e-mails of specific
Americans.
34

If the content-oriented and non-targeted nature of PRISM are
interesting, then so are NSAs reasons for implementing it in the first place.
According to the NSA, it built PRISM to overcome shortcomings in the
normal FISA procedure of obtaining warrants for each intercept request.
35

PRISM simultaneously takes advantage of and negates the U.S.s Internet
home field advantage. Because much of the Internets physical architecture
exists in the U.S., NSA has excellent access to that architecture. But it also
needs individual warrants for even wholly non-U.S. targets if the collection
happens on U.S. soil. That is, FISA requires a warrant to monitor foreigners
when that monitoring actually takes place on U.S. soil, even if the
communications are only incidentally traveling through the U.S. from one
internet-companies-in-broad-secret-program/2013/06/06/3a0c0da8-cebf-11e2-8845-
d970ccb04497_story.html.
33
NSA Slides Explain The PRISM Data-Collection Program, WASH. POST (June 6,
2013), http://www.washingtonpost.com/wp-srv/special/politics/prism-collection-
documents/; Glenn Greenwald & Ewen MacAskill, NSA Prism Program Taps in to User
Data of Apple, Google and Others, THE GUARDIAN (June 6, 2013),
http://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data.
34
Id. (quoting a Dec. 27, 2012 Senate floor debate).
35
Greenwald & MacAskill, supra note 33.
11


The Snowden Disconnect
foreign place to another.
36
According to NSA, FISA was broken because it
provided privacy protections to people who were not entitled to them.
37

Apparently, the NSA does not believe in a fundamental privacy right.
After the PRISM-related disclosures, some Internet companies sought
and obtained governmental permission to disclose some information about
the nature and number of government FISA requests. However, these so-
called transparency reports reveal only aggregated data and are therefore
not particularly telling. Facebook, for instance, received between zero and
999 requests for user data (in the form of National Security Letters) during
the last half of 2013.
3. Devouring an Entire Countrys Voice Communications: MYSTIC
In a more recent disclosure, the Snowden files provided insight into a
NSA surveillance program called MYSTIC, which is capable of recording
100% of a foreign countrys telephone calls. According to a senior program
manager, MYSTIC is somewhat like a time machineit allows retroactive
retrieval of calls for up to one month so that NSA need not identify a target
for surveillance in advance.
38

Begun in 2009 and operational in 2011, MYSTIC keeps a 30-day rolling
buffer of every single phone conversation in a target nation.
39
(The
Washington Post did not disclose the name of the target nation at the
request of U.S. officials but some suspect that nation is Iraq.)
40
Although
36
Id.
37
Id. (quoting a NSA presentation acquired through the Snowden files).
38
Barton Gellman & Ashkan Soltani, NSA Surveillance Program Reaches Into The
Past To Retrieve, Replay Phone Calls, WASH. POST (March 18, 2014),
http://www.washingtonpost.com/world/national-security/nsa-surveillance-program-
reaches-into-the-past-to-retrieve-replay-phone-calls/2014/03/18/226d2646-ade9-11e3-
a49e-76adc9210f19_story.html.
39
Id. (quoting the leaked MYSTIC PowerPoint briefing deck).
40
Glenn Greenwald, NSA Blows Its Own Top Secret Program In Order To
Propagandize, THE INTERCEPT (Mar. 31, 2014),
https://firstlook.org/theintercept/2014/03/31/nsa-worlds-blows-top-secret-program/.
12


The Snowden Disconnect
originally rolled out against only the one target nation, the most recent
secret intelligence budget suggests that MYSTIC is up and running on more
countries, or will be in the near future. And, unlike other NSA bulk-
collection programs that collect only metadata, MYSTIC is directed at voice
specifically. This cuts against the commonly-held notion that voice
communications are less suited than text for intercept and storage. Indeed,
this type of capability may be driving the NSAs need for mega data storage
facilities like the one in Bluffdale, Utah.
41

According to U.S. officials, this sort of data vacuum is highly valuable
even though almost of the data sucked up is not relevant to American
security interests. As a spokeswoman for the National Security Council put
it, new or emerging threats are often hidden within the large and complex
system of modern global communications, and the United States must
consequently collect signals intelligence in bulk in certain circumstances in
order to identify these threats.
42
Indeed, the 30-day buffer of voice
communication allows an analyst to uncover a new name or telephone
number of interest after the fact and immediately pull up a list of that
targets movements, associates, and plans.
The government also acknowledges that many of the conversations
collected involve Americans, but NSA does not try to filter those calls out
of the collection scheme. Instead, NSA defines any American conversations
as collected incidentally, which exempts those conversations from many
protections they would otherwise have. Under NSAs minimization
procedures, the names of U.S. callers are generally redacted (subject to
several wide exceptions), but the conversations themselves are still
41
Some sources, including Englands The Star and Daily Mail, have reported that the
Utah data center is code named Bumblehive. However, Fox News claims that code name
is phony. What We Know About The NSA's Secret Data Data [sic] Warehouse In Utah,
FOX NEWS (June 13, 2013), http://www.foxnews.com/tech/2013/06/13/what-we3-know-
utah-nsa-mega-data-warehouse/.
42
Gellman & Soltani, supra note 38.
13


The Snowden Disconnect
available for use in intelligence reports and briefings.
43

Such wide-ranging technological abilities were not known before the
release of the Snowden files, however, and the government criticizes the
revelation in spite of privacy concerns. Speaking about programs like
MYSTIC, the NSA claims such disclosures are highly detrimental to the
national security of the United States and of our allies, and places at risk
those we are sworn to protect.
44
Indeed, the mass collection is so important
to the government that President Obama recently rejected an independent
panels suggestion that U.S. conversations be purged from the system upon
detection.
4. Other Revelations
As noted, the depth and breadth of the Snowden files is beyond the
scope of this essay. Reporters have only released a small portion of the
cache thus far, so more revelations are very likely in the coming months and
years. Recently, the American Civil Liberties Union released The NSA
Archive, which contains the full text of all the documents released. The
Archive allows keyword searching and robust filtering of the cache.
45
Those
interested in this topic should continue to engage with the media and their
Congress delegation. Chang is coming, discussed in part II below, but what
the change will look like remains unknownbe part of the discussion.
II. THE SNOWDEN FILES: HARBINGER OF CHANGE
In January of 2014, President Obama announced that he wanted to stop
NSA from collecting call records in bulk while still preserving the agencys
ability to do so when necessary. The proposal that followed asks the FISC
43
Id.
44
Id.
45
Emily Weinrebe, Introducing the ACLU's NSA Documents Database, ACLU.ORG
(April 3, 2014), https://www.aclu.org/blog/national-security/introducing-aclus-nsa-
documents-database.
14


The Snowden Disconnect
to extend the current programs authority for three more months, but the
administration hopes to implement changes thereafter with the help of
Congress. There are three major prongs to the proposed new data collection
program.
46

First, the NSA will stop its bulk collection of Americans calling habits
and metadata. Second, the phone companies themselves will retain the bulk
metadata records and make them readily available to the NSA on a per-
order basis (rather than en masse, as happens now). Third, the changes
would also implement judicial oversight of queries to the database itself
through the FISC process.
47
(As it now stands, NSA analysts may search
through any data already collected without judicial permission to do so.)
In announcing the new proposal, President Obama acknowledged that
fears about our privacy in this age of the Internet and big data are
justified.
48
However, he also clung to the idea that mass data collection is a
useful tool in the fight against terrorism, even though, according to the N.Y.
Times, the government has been unable to point to any thwarted terrorist
attacks that would have been carried out if the program had not existed.
49

From a privacy advocates standpoint, the Presidents proposal, which
he urged Congress to implement quickly, leaves much to be desired. For
instance, the proposal refers to U.S. citizens as consumers in some
46
President Obamas original proposal in January 2014 also calls for the inclusion of a
panel of properly-cleared public advocates who can represent the public interest, but only
when the FISA court encounters a novel issue of law. Brian Fung, Everything You Need To
Know About Obamas NSA Reforms, In Plain English, WASH. POST (Jan. 17, 2014).
However, the administrations fact sheet about the reforms, from March 2014, does not
include that proposal.
47
Zeke J. Miller, Obama Calls for Congress to Pass NSA Reform Quickly, TIME.COM
(Mar. 25, 2014), http://time.com/37173/obama-calls-for-congress-to-pass-nsa-reform-
quickly/.
48
Id.
49
Charlie Savage, Obama to Call for End to N.S.A.s Bulk Data Collection, N.Y.
TIMES (Mar. 24, 2014), http://www.nytimes.com/2014/03/25/us/obama-to-seek-nsa-curb-
on-call-data.html.
15


The Snowden Disconnect
instances
50
and the Electronic Frontier Foundation rates the proposal at 3.5
out of 12. Additionally, why does Congress need to legislate these data
collection and access reformsthe overreach was instituted exclusively
through executive branch powers, should the executive also rein itself in?
51

However, the proposal of any reform at all comes after many months of
governmental posturingthe government vigorously asserted that NSAs
actions were completely legal, necessary, and righteous. Therefore, these
proposals, modest as they are, signal a significant change in the post-
Snowden-revelations rhetoric.
III. ANALYSIS
This part analyzes the diametrically opposed reactions to the Snowden
files that occur at either side of the spectrum. The differences are set forth in
subpart A. Then, subpart B reconciles those views by suggesting that, when
both sides actually engage in a meaningful conversation, the good results of
Snowdens acts far outweigh the bad.
A. Two Views, One Set of Files
Wide disparity exists across the United States in the response that
American citizens have to Mr. Snowden and his disclosures. On one end of
the spectrum, the security hawks present leaking the files as a traitorous act
with grave national security implications. At the extreme, some claim that
the leaks will lead to American deaths.
52
On the other side, privacy
advocates view the disclosures as essential information concerning
governmental overreach and constitutional violation. In their view, such
50
Peter Van Buren, Dissecting Obama's Proposed NSA Reforms, HUFFPOST.COM
(Mar. 28, 2014), http://www.huffingtonpost.com/peter-van-buren/dissecting-obamas-
propose_b_5048694.html.
51
The pessimistic view is that this is simple smokescreen for political legitimacy.
52
Julia Angwin, NSA Chief: Snowden Leaks Will Cause Deaths, WSJ.COM (Oct. 10,
2013), http://blogs.wsj.com/washwire/2013/10/10/nsa-chief-snowden-leaks-will-cause-
deaths/.
16


The Snowden Disconnect
knowledge empowers society to make cogent choices concerning privacy
and security and Snowden should be hailed, not condemned.
However, the current Snowden-based dialogue generally sees little
conversation taking placeboth positions are talking past each other, not
to each other. This gives ride to an interesting, if not altogether unique,
situation. And until there is some remedy to it, there can be little progress
toward reconciling the interests of the two groups. Without a meaningful
dialogue, both sides will continue to dig in their heels and take positional,
rather than interest-based, postures.
Positional thinking is black and whiteSnowden is a bad guy or a good
guybut fails to understand the connection between the position and the
interests that underlie it. That is, security hawks forget that their interest is
in national security, not in trampling on the Fourth Amendment. Such a
positional approach ignores the interests of the other side (e.g., privacy
rights) and does not allow a meaningful conversation to take place.
Ultimately, this lack of conversation stems from the two diametrically
opposed ways of interpreting the Snowden disclosures. That is, the two
positions are not in conversation because they are not using the same lens;
each position views the Snowden revelations in completely different light.
To explain, this essay groups Snowdens revelations in two distinct ways
the red lens and the blue lens.
Through the red lens, Snowdens revelations have done damage to the
U.S. security apparatus. Take disclosure of NSAs MYSTIC program,
discussed supra Part I.B.3, for example. Assuming that MYSTIC is in fact
targeting Iraq, and Iraq did not know about the program, one can easily
imagine the damage done. Terrorists and security threats within that country
are now on notice that their communications are completely compromised;
before the Snowden files, they probably were not taking appropriate
precautions because they did not even know they were under surveillance.
In this view, it is not particularly important that some American
17

The Snowden Disconnect
conversations might get swept up among the mass of Iraqi calls, and the
efficacy of NSAs MYSTIC program is severely compromised.
Through the blue lens, Snowdens revelations simply exposed a vast and
unknown security apparatus. For instance, the PRISM program and Verizon
metadata-collection disclosures, discussed supra Parts I.B.12, tell the story
of a government agency gone astray. The NSA, an agency that supposedly
only operated outside of the U.S., had instead turned its eyes and ears on the
homelandsurreptitiously collecting data about U.S. citizens that were on
American soil. Adding to that baseline, the fact that many large companies
seemed to be complicit, whether knowing or not, in the NSAs data
collection meant to many people that Snowden revealed a military-
industrial complex that disregards large sections of the Constitution.
This major and fundamental difference trickles down into other aspects
of the Snowden affair and the medias portrayal thereof. The position that a
person takes on the Snowden revelations depends on which version of the
Snowden account, illustrated above, that she accepts. For example, people
infer Snowdens intentions based on the color of their own personal lens.
Those seeing red portray Snowden as an egotistic, self-interested attention
seeker who cares little for the safety of the United States. The blue-lens
people, though, portray him as a moral and principled patriot who risked it
all because of his convictions.
Two reasonable people can take radically different positions on the
whole affair based simply on their own biaselevating one view
automatically subjugates the other. In this way, privacy advocates and
security hawks are really not even part of the same conversation.
B. The Disconnects, Reconnected
Understanding the viewpoint disconnect illustrated above informs the
associated disconnect between Snowden the hero versus Snowden the
traitor. Because the security hawks only see the harm that Snowden did,
18

The Snowden Disconnect
they call for his prosecution. Privacy advocates take the opposite line,
concluding that his disclosures fueled democratic debate and cast light into
a dark area of government actionand that Snowden should therefore be
indemnified. However, arriving at a real answerwhether Snowden is a
hero or a traitorrequires rejecting the notion that this is a positional black
or white debate, an either/or question. Indeed, the only way to find the
right answer is to balance the benefits produced by the Snowden files
against the harms. And then, to apply that analysis to United States
democracy.
So far, the government has been unwilling to engage in such a balanced
inquiry. Indeed, President Obamas proposed reforms to the NSAs bulk
data collection policy do not even acknowledge the Snowden files as the
precursor (or even a precursor) to the proposal. It is disingenuous for the
government to disclaim or ignore such an obvious connection; one must
infer that President Obama had some purpose for avoiding it. One obvious
purpose for avoiding a direct discussion of the Snowden-to-reform
connection is to maintain the ideological disconnect between the two.
53
Of
course, maintenance of the disconnect is an illegitimate policy rationale.
This is a sort of political doublethink. If the Snowden files are not the
impetus for these proposed changes, then the executive can take credit for
acting on its own to improve Americans privacy protections (even though,
facially, that is absurd). The intertwined result is that the executive will
continue to push for Snowdens extradition and prosecution.
54
Though of
53
A less nefarious purpose might be to avoid compromising the criminal case against
Snowden. However, that purpose still places a position (Snowden is guilty!) above an
interest (national security may require some invasion of privacy) and fails to persuade in a
representational democracy that vaunts the marketplace of ideas.
54
See, e.g., E.L., Treachery And Its Consequences, THE ECONOMIST (Jan. 10, 2014),
http://www.economist.com/blogs/democracyinamerica/2014/01/snowden-case-prosecution;
Grant Gross, Petitions Call On US Government To Leave Snowden Alone, PCWORLD
(Mar. 25, 2014), http://www.pcworld.com/article/2111700/petitions-call-on-us-
government-to-leave-snowden-alone.html.
19


The Snowden Disconnect
course these positions are fundamentally inconsistent, they allow the
executive to simultaneously play both sidesappease the privacy advocates
but remain tough on terrorism for the security hawks.
This also allows the executive to avoid answering some of the hard
questions. For instance, Director of National Intelligence James Clapper
recently admitted that the NSA investigates US persons without
warrants.
55
Even if such actions were legal, which is highly suspect, then
Clapper still lied about his agencys actions to directly to Congress. Thus
far, there have been no calls for punishment. What is the lesson here, that
lying to cover up eviscerating the Constitution is better than telling the truth
to protect it?
This, of course, is highly hypocritical. Is it really breaking the law to tell
the public that one of its leaders is breaking the law? Would Deep Throat
have been prosecuted for revealing the Watergate scandal to The
Washington Post?
These questions cannot be answered without an honest accounting of
the Snowden files, and an honest accounting requires balancing the good
with that bad, as discussed above. Here, the balance is clear.
Our country has a long history of rejecting the overreach of authority. It
is why and how we exist. Henry Thoreau and other abolitionists rightly
detested slavery and refused to pay the taxes that supported it. After being
jailed for his conscience, Thoreau wrote Civil Disobedience and argued
powerfully that individuals cannot allow governments to overrule and that
citizens have a duty to avoid being agents of injustice. Martin Luther King,
Jr. went one step further: one has a moral responsibility to disobey unjust
laws. Indeed, an unjust law is no law at all.
Patrick Henry wanted either liberty or death and nothing in between; the
55
Spencer Ackerman & James Ball, NSA performed warrantless searches on
Americans' calls and emails Clapper, THE GUARDIAN (Apr. 1, 2014),
http://www.theguardian.com/world/2014/apr/01/nsa-surveillance-loophole-americans-data.
20


The Snowden Disconnect
Declaration of Independence itself, codified in the Constitution, recognizes
the unalienable right for individuals to be secure in their persons and
effects. Indeed, one of the cases belli for the American Revolution was the
British Crowns issuance of writs of assistance, which were generalized
warrants akin to National Security Letters from the FISC. Indeed, that
grievance led directly to the Fourth Amendment itself.
Benjamin Franklin is oft quoted with the enduring statement, They
who would give up essential Liberty, to purchase a little temporary Safety,
deserve neither Liberty nor Safety.
56
Here, though, the government is
trying to take liberty in order to give safety, without an accurate accounting
of that transaction. Snowdens revelations are a glimpse at the national
blotter, remind us that the governments power derives from its citizens
liberty, not the other way around, and gives the nation a chance to take back
the liberty that it did not even know it had lost.
CONCLUSION
In the end, the lack of any honest accounting from the executive is itself
proof that the Snowden files have done more good than harm. If contrary
facts existed, surely the government would have produced them by now. As
it stands, the Snowden files have done far more good than they have done
harm. It is not congruent for the government to simultaneously engage in
fixing the NSAs surveillance apparatus while calling for Snowdens
prosecution. The ends, in this case, have justified the means. Like Daniel
Ellsberg, history will look favorably back at Edward Snowden and his trove
of security revelations.
Therefore, the U.S. needs to reconsider its position on this issue,
particularly in terms of the pending criminal prosecution of Snowden. At
56
Benjamin Franklin, Pennsylvania Assembly: Reply to the Governor,
FRANKLINPAPERS.ORG,
http://franklinpapers.org/franklin/framedVolumes.jsp?vol=6&page=238a (capitalization in
original) (last visited April 10, 2014).
21


The Snowden Disconnect
the very least, the U.S. should extend Snowden the same protections that he
would have enjoyed under the Whistleblower Protection Act
57
(had he not
been a contractor). The U.S. should certainly drop both Espionage Act
charges, and continue its case on the Theft of Government Property charge
alone, if at all. However, if the government is serious about restoring trust,
which is essential both to American experiment and to national security, it
should drop all charges against Snowden. Leaving that distraction and
hypocrisy behind will be good for the country and good for the world,
allowing the United States to focus instead of implementing meaningful
reforms that address both security and privacy interests.

* * *
57
Pub. L. 101-12, 5 U.S.C. 12011222. The Whistleblower Protection Act (WPA)
provides statutory protections for federal employees who engage in whistleblowing
making a disclosure evidencing illegal or improper government activities. See L. Paige
Whitaker, RL33918, The Whistleblower Protection Act: An Overview, Cong. Res. Serv.
(2007), available at http://www.fas.org/sgp/crs/natsec/RL33918.pdf.
22